Is groundwater trading the future of California water?
A summit in Fresno last week was upbeat on a dour topic: the megadrought of the American West.
If the recent blockbuster report about civilization exceeding nearly all of Earth’s natural limits was harsh, the summit – thrown at Fresno State’s newest building, the Resnick Center, named after Stuart Resnick, California’s wealthiest farmer – was the more relaxed counterpart to this fact.
Water district managers and policy makers talked about the future of the San Joaquin Valley’s groundwater aquifers – whose collapse has long been the poster child for an industry growing beyond the provisions of rivers and aquifers.
The cream of the state’s water policy experts said their expectation of drought and climate change was rosy.
At the meeting, a new vision of water in the valley emerged.
As climate change and regulations threaten to fallow farmland, early experiments show that a new water stockpile for the state’s most valuable farmland is possible, leaders at the meeting said.
This could happen by using the force of free markets to harness climate change’s wild swings of drought and flood into a multi-billion dollar bonanza.
Through an expanded groundwater trading market, more water could be shifted to the state’s lucrative nut orchards, and away from vegetables and field crops, according to a new report presented at Wednesday’s meeting by the Public Policy Institute of California, a think tank based in San Francisco.
By expanding the supply of water that can be bought and sold, the Valley’s agricultural economy could defy climate change and drought, and grow by $1 billion dollars by 2040, instead of the alternative – a $4 to 6 billion shrinkage over the same time span if water trading isn’t utilized.
To get more groundwater trading done between farms, and from agriculture to cities, the state needs a new water rights system, said Karla Nemeth, director of the California Department of Water Resources.
California groundwater trading requires the state to “modernize our water rights system,” Nemeth told Fresnoland. “There’s got to be a new kind of trading partnership between urban and agricultural users.”
Water markets decide which fields go dry
Expanding groundwater trading in the future would primarily work by growers converting captured floodwater during wet years into groundwater credits that can be cashed during periods of drought – when people need the water most.
While good for economic growth, the groundwater trading would put small farmers at an increased risk for land fallowing, according to the PPIC report. This is because they would likely sell their water to bigger agribusiness corporations.
“It’s not a mystery: we have a market that is very dominated by bigger organizations that are more sophisticated,” Nemeth said about the state’s water trading markets.
DWR’s groundwater banks have been criticized in the past for unfairly helping the state’s wealthiest growers.
In the mid-1990s, DWR set up California’s largest water bank in a series of hidden meetings in Monterey. The bank became controlled by entities associated with Stewart Resnick, who used the bank’s water to help double his nut acreage.
According to Wednesday’s PPIC report, a larger water market in the valley would cause a similar outcome.
The Valley’s nut empire would be the primary beneficiary.
Overall, fewer pistachios and almonds orchards would be lost, and a greater portion of the 500,000 – 1 million acres of lost farmland over the coming years would be vegetable and field crops.
“One of the key things to take away is that trading is not affecting the total amount of fallowed land,” said Andrew Ayres, a research fellow at PPIC and one of the lead authors on the report.
Instead, the California groundwater trading market “allows you to move that water from crop applications that are less profitable to ones that are more profitable,” which prevents the richest agribusiness operations from going bust during drought, Ayres added.
These new water solutions could be a breakthrough, said Allison Febbo, the general manager at Westlands Water District – home to some of the biggest pistachio and almond orchards in the world.
“It’s important for our district that our land re-purposing is long-term, but temporary,” Febbo said. “We may be able to bring some of that land back into irrigation at some point.”
The riches of flood: an idea born in crisis
When the floods came earlier this year, an awakening happened, panelists at the meeting said.
With record snowpack, a million acre-feet of water could have been stopped from reaching the Pacific Ocean, said Sarah Woolf, a farmer who owns roughly 30,000 acres of farmland in Fresno County.
She said that water could have been put underground in the Valley, to be pumped up later on.
“That is a big amount that…if it’s in the ground, we can use years later,” she said.
“We get a real sense of catastrophe during these dry periods and then we had 2023 to help remind us that there’s a lot we can do,” said Nemeth, California’s top water official.
“We’re not quite ready to make the best use of those moments like we need to be,” she added.
Eric Averett, CEO of Atlas Water LLC, said groundwater banks could use these floods as a bulwark for private equity firms in the San Joaquin Valley.
Wildland habitat restoration projects along the San Joaquin River are a potential opportunity to farm these newfound groundwater credits, he said.
“We go in, we’ll acquire the ground, and develop a groundwater banking project so that we can bring in additional [flood]water in, generate the credits, and monetize them.”
Once traded, water commodities will be central to the private sector’s revenues on the climate transition in the San Joaquin Valley.
For solar projects in the San Joaquin Valley, the primary money generator is selling off the water rights of the newly fallowed land, Averett added.
A new water supply
“That trading thing is a very fun, controversial idea. It’s got everything all bundled into one.” said Aaron Fukuda, general manager of the Tulare Irrigation District.
By certifying floodwater as recharged groundwater, Fukuda said an aquifer monitoring network from SGMA has helped farmers grow the amount of groundwater they can pump.
“We figured out that the same tool that was a detriment became an incentive, now that the [SGMA] water dashboard was giving credit to growers,” said Fukuda. “The market opens up these windows.”
Don Cameron, a manager of a 6,000-acre ranch 15 miles south of Fresno that relies entirely on groundwater, said groundwater trading is gaining more traction along the Tulare Lake Basin.
“In the Kings sub-basin, we’re starting to see more cooperation,” said Cameron, who is also president of the California State Board of Food and Agriculture. “There’s a lot of potential to move water within the basin.”
The possibility of finding a new, one million acre-foot water supply fundamentally changes the conversation over the San Joaquin Valley’s climate transition, said Ann Hayden, vice president of climate resilient water systems at the Environmental Defense Fund.
“We can’t be talking about demand reduction…without also talking about the [water] supply augmentation that is possible,” she said.
Unknown risks of California groundwater trading
Last year’s Nobel Prize lecture, however, pours cold water over the idea of well-designed water markets anytime soon.
Stanford professor Paul Milgrom – a 2020 Nobel laureate who created key trading schemes in telecommunications – said water markets in California are one of the most daunting challenges he has encountered.
“Water is not like other commodities. It’s not like oil, for example,” Milgrom said. “The externalities that are inherent in water are different from anything else I have ever seen.”
Milgrom said that the unknown downstream effects of trading water – a key ecosystem resource – made water trades difficult to account for without a major overhaul of the state’s water regulations.
Political risks are also plentiful, according to a paper from 2020.
The researchers said that deciding the fate of farming communities — for example, sacrificing a small vegetable farm for a hedge fund’s almond speculation — could lead to backlash.
“[I]f water transferred out of a region results in impacts on local employment and income, such third-party effects can lead to transfers being politically unattractive (and lead to limits on transfers),” the paper said.
The lone person to push back on the water trading idea was also one of the only people of color who was invited to speak at the summit on Wednesday.
“Water markets are going to serve the purpose of profit,” said Sonia Sanchez, senior community development specialist at Self-Help Enterprises. Sanchez, however, stopped short of opposing groundwater trading entirely.
Instead, she said she hoped agribusiness would work with low-income communities to balance the industry’s groundwater contamination with their groundwater trading.
When small town’s local groundwater supplies become contaminated by agriculture run-off, Sanchez said, “we don’t want to have low-income communities buy their water on the market.”
Sanchez also said that putting all this floodwater underground, instead of into the ocean, could concentrate unknown types, and amounts, of toxic chemicals into local groundwater supplies.
At the summit, this risk was mentioned in passing as something to look into the future.
Klemeth said the department of water resources is looking into the problem.
“I do think when we’ve got these bigger recharge projects that are underway, getting constructed, getting ready for operations, it does have to come with a more complete water quality program, Klemeth said.
“The groundwater sustainability agencies are working on that, and that really has to be hand-in-glove.”
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Pillen’s Water: High nitrate detected on hog farms owned by Nebraska’s governor
Covered swine barns dot the landscape near Platte Center, where tens of thousands of hogs are raised and fed.
Many of these barns are owned by a local boy who grew up a few miles west of the village, built his small family farm into a global pork empire and then became governor.
Gov. Jim Pillen’s hog operations bring jobs and prosperity to this area near his hometown. They also may bring risk to Platte Center’s drinking water.
The town had to dig a new municipal well three years ago, after another well recorded nitrate at nearly 12 parts per million. That’s higher than the level the federal government says is safe to drink.
Ingesting high levels of nitrate has been linked to a variety of health conditions: A syndrome that can kill babies, thyroid disease, birth defects and cancers, including cancer in children. Nationally, Nebraska has the highest pediatric cancer rate west of Pennsylvania.
Nebraska counties with elevated nitrate levels are often the places where children suffer higher rates of brain cancer, lymphoma and leukemia, a recent University of Nebraska Medical Center study shows.
Andrew Greisen, Platte Center’s water operator, says the area surrounding town has seen a handful of cancer cases this year.
“When I was young, there wasn’t that (many) people with cancer. Now it’s wild,” he said. “Prostate cancer, breast cancer and brain cancer, just everything. I just think it’s got to be the food we’re eating or the water we’re drinking.”
That’s why Greisen is now working with Natural Resources District experts as they map nitrate levels inside Platte Center-area aquifers – studying where the nitrate may be flowing from.
There are many potential culprits, including the nitrogen fertilizer applied for decades to corn fields surrounding this small town.
Another potential culprit: The Platte Center West hog farm. The farm, 6 miles northwest of town, recorded a 61.5-parts-per-million nitrate level – six times above the legal drinking water limit – in one of its monitoring wells last year.
Another nearby hog farm, Janssen Platte Center Nursery, which tested 21.2 parts per million nitrate in April, has shown “strong elevated nitrates and chloride levels,” according to a groundwater review by the Nebraska Department of Environment and Energy last year.
Both of these hog farms are registered to an owner at 4438 Old Mill Court in Columbus, the headquarters of Pillen Family Farms.
Greisen suspects most of the nitrate comes from anhydrous ammonia fertilizer dumped on cornfields decades ago. He also said that there’s a “good possibility” that hog farms with high nitrate readings affect the area’s water quality.
“It throws a red flag, it really does,” he said.
Since 1993, Pillen and his family have owned or operated at least 108 livestock facilities – most of them hog barns – spread throughout the state, but clustered in eastern Nebraska, according to permitting records.
Only 27 of these facilities are required by the state to have monitoring wells installed on them.
Sixteen of those 27 have recorded nitrate levels higher than 50 parts per million at least once since monitoring began on site, according to a Flatwater Free Press review.
A few of them have violated the state’s livestock waste control rules. They have housed more hogs than permitted, the state alleged, failed to report wastewater discharge into a marsh and submitted groundwater test results and manure nutrient analyses late – all of which could conceivably increase the risk of nitrate contamination, research shows.
Pillen is far from the only big hog producer facing these issues. In many places, waste from concentrated livestock operations is a major contributor to ground and surface water nitrate pollution, the research noted.
These high readings on Pillen-affiliated livestock facilities result in little state action, the review shows. Like other hog farms and feedlots that have reported high nitrate in Nebraska, the elevated levels don’t automatically trigger any state intervention, as the Flatwater Free Press previously reported. The NDEE examines these results individually to determine potential causes and solutions, said Amanda Woita, a department spokesperson.
To be clear: No one is directly drinking from these monitoring wells on hog farms. But some of that nitrate will move along with groundwater, experts say, potentially posing a risk to residents living downstream and contributing to Nebraska’s nitrate problem.
Pillen did not respond to multiple interview requests from Flatwater Free Press and Investigate Midwest about his hog operations.
In a December 2022 interview with the Nebraska Examiner, Pillen portrayed nitrate pollution as a problem largely stemming from the past. He said much improvement has been made, and that remaining problems will take time to address. “And if there are a few silly things going on, it’s easy to be able to identify that and granularly fix that,” he said.
A spokeswoman for the governor directed all questions to Pillen Family Farms.
Pillen Family Farms CEO Sarah Pillen, the governor’s daughter, sent a general statement when reporters requested an interview. She said the company “(has) always placed a strong commitment on being positive environmental stewards of the land.”
She noted the company employs a 17-member team who work to protect Nebraska’s groundwater and ensure safe nutrient management.
She and other Pillen Family Farms executives did not respond to multiple email questions about high nitrate detected on specific hog farms, potential causes of these high readings and the company’s remediation efforts.
PC West, owned by Pillen Family Farms, is one of dozens of livestock operations near Platte Center. It’s upstream of the village, which has faced mounting nitrate issues in its drinking water. A monitoring well at PC West has recorded nitrate levels as high as 61.5 parts per million. Drone video by Matt Waite for the Flatwater Free Press
Many Pillen hog barns have few to no known nitrate issues, data show. Nitrate readings at modern hog confinements should be low unless waste storage pit leaks or manure is overapplied in nearby fields, said Chris Jones, former University of Iowa water quality researcher and author of book “The Swine Republic.”
Other Pillen hog barns look much like the hundreds of other pig farms spread across Nebraska, which tend to show at least slightly elevated nitrate levels at some points. Ray Ward, founder of a leading Nebraska water testing lab, said nitrate readings near livestock waste lagoons are “quite variable,” from near-zero levels to very high numbers.
Still other Pillen operations, like a Holt County hog farm, have recorded nitrate levels higher than Jones says he’s ever seen.
The Holt County farm, called CRB Finish, had multiple nitrate readings higher than 200 parts per million between 2015 and 2017.
In 2016, it recorded a reading of 445 parts per million – nearly 45 times the EPA standard for safe drinking water.
“If you’ve got a monitoring well that’s 400 parts per million and there’s drinking water wells in the area, that should be a 911,” Jones said.
Another expert, Rebecca Muenich of the University of Arkansas, said it’s a “huge, huge, huge human health concern” if nitrate anywhere near this level makes it into the drinking wells of nearby residents.
“That’s water that you can sell as fertilizer for sure,” said Muenich, who specializes in analyzing water quality data near livestock facilities.
The nitrate levels in that Holt County hog farm monitoring well have dropped markedly since 2020, dipping to near zero in November 2022.
Many other monitoring wells on livestock facilities tied to Pillen Family Farms continue to show flashing nitrate warning signs.
Nine different hog farms that the state lists as being Pillen-affiliated reported nitrate higher than 70 parts per million this year, according to an FFP review of groundwater reports.
Two are near Platte Center, population 355. The monitoring well at Pillen’s Production Farms, a hog farm south of the village, had water tested at 70 parts per million nitrate in April. Another farm, Oconee Finisher, reported 76 parts per million this year, the highest level since it started monitoring.
Both are downstream of the town and have less impact on the town’s drinking water. But residents of rural Platte County – many of whom get their drinking water from private wells that aren’t required to be tested – are still at risk, experts say.
At least seven domestic wells are situated within three miles downstream of Pillen’s Production Farms, a Flatwater Free Press analysis of the state well registry found.
Platte Center is surrounded by nearly 50 livestock facilities within a five-mile radius, including feedlots and hog barns. Many don’t have monitoring wells installed on site. The three that do, including one not owned by Pillen Family Farms, all show significantly elevated nitrate levels.
The town recently drilled a new, deeper well that’s currently delivering clean water.
The project’s price tag: roughly $500,000. The state footed nearly half the bill.
Greisen is worried about Platte Center’s future, because he knows what is happening nearby.
The village of Lindsay has spent $826,000 digging a new well and running pipes into the village. One of that 283-person village’s wells has regularly violated the 10-ppm drinking water standard since 2010.
Bellwood is also under the threat of high nitrate.
Greisen wonders, and worries: Is more polluted water coming Platte Center’s way?
A nitrate mystery
Sometimes called “liquid gold,” hog manure contains a high concentration of nitrogen matter, which converts to nitrate when exposed to oxygen. Nitrate is great fertilizer for crops. But it can also easily find its way into groundwater, which supplies 85% of Nebraskans with drinking water.
The federal Clean Water Act gives states the authority to monitor water at certain livestock operations. Many states mandate the monitoring of nitrate because of potential water contamination.
Experts say these monitoring wells may pick up high nitrate originating from sources unrelated to livestock. The high nitrate detected could reflect plumes of nitrate, generated years ago, now entering the water table. It may also come from commercial fertilizer – many of Nebraska’s hog farms are near cornfields.
But sometimes feeding operations are the direct source of nitrate, depending on how they store feed, manage wastewater and apply manure to surrounding land, according to the NDEE and outside experts.
That’s why the NDEE typically requires multiple-well monitoring programs on certain sites — at least one upstream that indicates background contaminant levels, and two downstream.
High nitrate readings in a downstream well can indicate that the feedlot or hog barn has released large amounts of nitrogen into the aquifer, said Dan Snow, director of the University of Nebraska Water Sciences Laboratory.
Snow said the high nitrate and spikes of ammonia at CRB Finish, the Pillen hog farm in Holt County, seem to signify multiple leaking events in the wastewater distribution system. It appeared a spill “allowed the ammonia and other contaminants to flow directly into the aquifer,” he told the Flatwater Free Press, after reviewing the groundwater monitoring data.
Pillen Family Farms executives didn’t respond to multiple Flatwater Free Press emails asking about the potential cause of the high nitrate.
The soil is also very sandy in Holt County, Snow said, so nitrate from animal waste can get quickly washed into the water table. “Maybe having animal feeding operations in that part of the state is not a good idea, just because it’s much easier to contaminate the local groundwater,” he said.
Hog manure is often applied to nearby fields to avoid high transportation costs, thus exposing nearby bodies of water and groundwater to contamination risks, said Muenich, the University of Arkansas water expert.
“… It can be accidental application or deliberate; it doesn’t matter,” Snow said. “If it’s at the surface … and the plant doesn’t use it, it can eventually end up at the water table.”
State regulators point out that there are restrictions for livestock facilities like the Pillen Family Farms hog barns. They must sit at least 100 feet from an existing domestic well and 1,000 feet from an existing municipal well.
Some animal feeding operations are also asked to monitor nearby drinking wells, said Carla Felix, an NDEE spokesperson, in an email.
No hog barn is known to have contaminated a rural resident’s drinking water, Felix said.
“NDEE is not aware of any documented incidences where a private well was impacted by a (Livestock Waste Control Facility),” she wrote.
And she noted that any investigation isn’t guaranteed to identify the source of high nitrate for a simple reason: Groundwater moves.
Jones, the Iowa water expert, suspects that this mystery about where high nitrate comes from isn’t one that regulators are clamoring to solve.
The Natural Resources Defense Council, an international environmental nonprofit, gave Nebraska an overall rating of “low” for what it says is a lack of livestock operation data transparency.
To Jones, keeping the sources of high nitrate mysterious is the point.
“The uncertainty about individual operations … the industry uses that … to avoid responsibility and make the case that it can’t be regulated,” he said.
Problems in Hastings
In 2006, a U.S. Fish and Wildlife employee reported that workers at a Hastings-area hog farm were pumping hog waste onto a nearby federal wetlands area. State regulators later alleged that the hog farm, co-owned by Pillen Family Farms had “allowed or caused a discharge of livestock waste” onto the wetlands, then failed to report the spill.
In a separate incident, farm employees constructed a PVC pipe without a permit. They used the pipe to drain a storage pit into a freshwater channel, regulators alleged.
The operation near Hastings, named Inland Foods, eventually entered a court-ordered agreement with state regulators and paid a civil penalty.
Inland Foods is one of a dozen Pillen Family Farms livestock operations that have violated state regulations in the past three decades, a review of NDEE documents shows.
Current executives at Pillen Family Farms didn’t respond when asked about specific violations of state rules.
In a statement, Sarah Pillen touted the company’s general environmental protection measures, describing them as “far beyond regulatory requirements.” The company works closely with state regulators, she said. In the company’s history, she said, it has never had a permit revoked. (Read Sarah Pillen’s full statement here.)
The Hastings-area farm didn’t have groundwater monitoring when it paid a penalty for violating state rules.
In 2011, state regulators recommended the installation of monitoring wells. The nitrate readings came back high.
An inspection later that year suggested the hog farm violated state rules by housing more hogs than its permit allowed.
High nitrate on site has continued. A downstream monitoring well detected a level of 77.8 parts per million in May. A 2021 NDEE report concluded that “this facility is impacting groundwater quality with a depth to water of 85-100 feet.”
The high nitrate readings didn’t surprise Marty Stange, Hastings’ environmental supervisor. He said local construction projects might have altered groundwater flow, and high nitrate levels might not necessarily reflect the hog farm’s manure management.
The NDEE works with livestock operations it has deemed to have impacted groundwater, Felix said. Sometimes it orders these facilities to do things such as increase monitoring, plant trees or relocate lagoons, which can cost millions of dollars.
There’s no public record of NDEE further investigating or otherwise acting on its 2021 report. Woita, the NDEE spokesperson, declined to say whether the department has worked with Inland Foods, the hog farm co-owned by Pillen Family Farms near Hastings, on any remediation.
Despite record-keeping rules, state regulations aren’t stopping high nitrate from showing up in water near livestock operations, advocates say. The leaching of nutrients from manure into groundwater and surface water can kill fish, cause algae bloom and threaten drinking water, research shows.
State rules require hog barns to document where manure is applied to prevent overapplication.
But Anthony Schutz, a UNL law professor and board member of the Lower Platte South Natural Resources District, said such paperwork doesn’t guarantee good stewardship. After all, it’s nearly impossible for NDEE inspectors to watch every acre.
“You keep a bunch of records. You do a bunch of monitoring. You follow all of the rules that are in the permit. But it turns out the rules in the permit don’t actually require you to not pollute. And so you wind up with … where we are today,” said Schutz.
Stronger guardrails needed?
Last September, a handful of Nebraskans testified at a state hearing on proposed permitting changes for concentrated animal feeding operations. Some testifiers were grassroots organizers. Others farmed small plots of land next to a livestock operation.
Most wanted the state to hold large, industrial farms more accountable.
“The water in this state belongs to the people, not to any industrial ag interest,” said Nancy Meyer, a Cedar Bluffs resident, arguing Nebraska is neglecting to protect its groundwater.
“When does the alarm sound loud enough that we stop overloading our soils and waterways with nutrients?” said Ashlen Busick, a testifier from the Socially Responsible Agriculture Project, in an interview with the Flatwater Free Press.
But many inside Nebraska’s ag industry are dubious.
Livestock nutrient management consultant Andy Scholting thinks current state regulations already provide ample guardrails.
“We’re doing more in regards to nutrient management compared to other states in the Midwest,” he said, noting the state mandates more frequent soil tests before manure application.
Osceola farmer Kevin Peterson owns a 4,800-head hog farm and serves on the state Environmental Quality Council, a 17-person, governor-appointed board that adopts some NDEE regulations.
Peterson thinks the current regulations, and a heavy emphasis on educating farmers, are working as intended.
After all, overapplying manure is expensive, he said. And Nebraska farmers are increasingly heeding the nitrate problem and taking voluntary action to address it, Peterson said.
“It’s a lot easier to envision a robber baron sitting in the office … twisting his evil mustache and thinking about how they could destroy the environment in order to make an extra penny,” said Peterson. “I’ve yet to run into any of those folks … I do not think Governor Pillen is one of those.”
As governor, Pillen could strengthen rules and “stop the bleeding,” said Graham Christensen, an Oakland-area farmer who focuses on regenerative agriculture and runs a consulting firm.
“He has such an opportunity as this known polluter to help bring farmers into a situation where they’re not (polluting), and his operations would benefit from that,” said Christensen.
Pillen could tap into federal funding to promote farming practices that can reduce nitrate leaching, such as planting cover crops, Christensen said. He could step up state regulations on manure application such as requiring buffer strips when manure is applied.
“He’s ignoring the issue. He’s not wanting to meet with anybody on this thing. He’s not publicly addressing our concerns,” Christensen said.
This April, the NDEE published a letter to Nebraskans concerned about the feedlots, hog barns and chicken farms that surround small towns like Platte Center.
The document summarized public comments and the agency’s response to 11 different points of concern over water quality and waste control, after some commenters said the agency didn’t adequately address concerns raised in the rule-making process.
In the April letter, there’s a spot in the document where the NDEE listed any changes it has made in the permit rules in response to these concerns.
In all 11 areas where potential change could occur, the state agency responded with a single word.
Sky Chadde, of Investigate Midwest, contributed to this story.
This is the second in a series. Read the first story here.
The Flatwater Free Press is Nebraska’s first independent, nonprofit newsroom focused on investigations and feature stories that matter.
The post Pillen’s Water: High nitrate detected on hog farms owned by Nebraska’s governor appeared first on Investigate Midwest.
Mining in your backyard: The story of Mountain Mist Mine and the neighbors contesting it
California pays San Joaquin Valley farmers millions to keep water in the ground
The state is sending millions to farmers throughout the San Joaquin Valley to keep water in the ground.
The money, paid through the LandFlex program, goes to groundwater sustainability agencies (GSAs) and then directly to farmers, paying them for every acre foot they don’t pump.
On July 24, the Department of Water Resources announced awards to the Lower Tule River and Pixley GSAs of $7.7 million and $5 million, respectively, and $4 million to the Westlands Water District GSA.
This is the second round of LandFlex funding. In February, DWR recommended awards of $9.3 million to Madera County GSA, $7 million to Greater Kaweah GSA and $7 million to Eastern Tule GSA.
The LandFlex program has now depleted its funding and it’s unclear if more will be forthcoming.
LandFlex is separate from the Multibenefit Land Repurposing Program, run by the Department of Conservation. That program aims to find other uses for farmland in order to reduce pumping. In June, three valley groundwater agencies including Westlands, Turlock and agencies in the Merced subbasin, received $35 million in grants from the Multibenefit program.
Unlike other incentive programs, LandFlex is more of an immediate drought relief solution for at-risk drinking water wells and vulnerable communities, said Teji Sandhu, DWR’s LandFlex program manager.
Program aims to keep thousands of acre-feet of water in the ground
The program requires all participating landowners to fallow their crops for a year. The state pays farmers up to $350 per acre foot of water saved during that time.
After that, there is a permanent elimination of all groundwater overdraft, meaning landowners in the program can only pump the allotted sustainable amount in their area. Farmers in this stage are paid $1,000 per acre foot of overdraft eliminated.
Lastly, the program will pay anywhere from $250-$2,800 per acre of land that is transitioned to more sustainable uses such as less water intensive crops.
LandFlex could save anywhere from 100,000-200,000 acre feet of water, said Sandhu.
As the name suggests, the program is flexible, she added.
“We were able to kind of turn some of this program, not only as a drought tool, but as a flood tool,” said Sandhu. “We opened up the program to make sure these guys could recharge, especially floodwaters.”
For Pixley and Lower Tule, the land targeted was nearby scattered domestic wells, said Eric Limas, general manager for both districts. Those clusters of domestic wells scored higher on DWR’s assessments, he said.
“The domestic wells that are scattered out and about are drilled pretty shallow and those are the ones that are more susceptible to going dry,” said Limas. “We’re glad to see the state investing in this program because it eliminates overdraft sooner and protects those domestic wells.”
Landowners are in the process of signing contracts and should receive money 45 days later, said Aubrey Bettencourt, CEO of the Almond Alliance which is a contracted technical assistance provider for LandFlex.
In the Westlands GSA, eight landowners are moving forward in the program. That’s out of 75 who qualified initially, said Bettencourt.
Westlands added additional criteria for DWR to assess. Subsidence-prone areas were also considered in the process since Westlands has many areas that have sunk significantly due to overpumping.
The program focuses not only on protecting domestic wells, but moving landowners to compliance with the state’s Sustainable Groundwater Management Act (SGMA), which aims to bring groundwater basins into balance by 2040.
LandFlex will, “bear hug SGMA, create that certainty and create that financial backing that allows the farmer to see themselves into a post SGMA world,” said Bettencourt.
Farmers in the San Joaquin Valley have relied more heavily on groundwater as surface water supplies from the Sacramento-San Joaquin Delta have dwindled for environmental needs and after multiple years of prolonged drought.
As a result, aquifer levels plummeted causing shallow domestic and community wells to go dry throughout the San Joaquin Valley. The effects have lingered, with more than 1,000 wells going dry in the valley even during this very wet year.
The post California pays San Joaquin Valley farmers millions to keep water in the ground appeared first on Fresnoland.
The Colorado River flooded the Chemehuevi’s land. Decades later, the tribe still struggles to get its share of the river
The opposite side of the reservoir is dark and so quiet that water lapping on the shore and bats clicking overhead can be heard over the distant hum of boat engines. This is the Chemehuevi Indian Tribe’s reservation in California. The water that rose behind Parker Dam to create Lake Havasu washed away homes and flooded about 7,000 acres of fertile Chemehuevi land, including where tribal members grazed cattle.
The communities across the reservoir reflect the vast divide in economic opportunities between Indian Country and the rest of the West, which has been perpetuated, in large part, by who received water and who did not.
In 1908, the U.S. Supreme Court ruled that the federal government owed tribes enough water to develop a permanent home on their reservations, and that their water rights would hold senior priority, meaning they trumped those of others. In the Colorado River Basin, most tribes, even during a drought, should get water before Phoenix, Las Vegas, Los Angeles and elsewhere.
More than a century later, only a few basin tribes have benefited from this system. Of those that have, some live near federally funded canals and pipelines that can deliver water to their land; others received money to build their own water systems; and some negotiated for the right to market their water to other users. The Gila River Indian Community, for instance, recently struck a deal with the federal government to forgo using some of its water in exchange for up to $150 million over the next three years, depending how much water it conserves, and $83 million for a new pipeline.
But most of the basin’s 30 federally recognized tribes have faced seemingly endless barriers to accessing and benefiting from all of the water to which they’re entitled. The Chemehuevi Reservation fronts about 30 miles of the Colorado River, yet 97% of the tribe’s water remains in the river and ends up being used by Southern California cities. The tribe never receives a dollar for it.
The water that has already been guaranteed to basin tribes but remains unused totals at least 1 million acre-feet per year — nearly one-tenth of the Colorado River’s flow in recent years and nearly four times the Las Vegas metro area’s allocation. If sold outright, this water would be valued at more than $5 billion, according to a ProPublica and High Country News analysis. For the Chemehuevi, a tribe with about 1,250 members, that means the amount of water it has on paper but doesn’t use would have a one-time value of at least $55 million.
Steven Escobar, the Chemehuevi’s tribal administrator, grew up testing his mettle against the Colorado River’s currents, swimming across its cold waters upstream of the reservoir. He still thinks of the river in terms of struggle. But now, it’s a struggle for the tribe to get the same help from the federal government to access water as others have, or, if not, to get compensation for what’s legally theirs.
“All that development and governmental support that they provide every state, that should be the same thing they provide to tribes,” Escobar said. “We’ve had to fight for everything out here.”
As demand on the Colorado River far exceeds its supply, tribes worry that they’ll never receive the water they’re owed.
The Chemehuevi are left in a bind: The tribe doesn’t have the pumps or other infrastructure necessary to deliver its full allotment of river water to its reservation. While the federal government gave the tribe a grant to build a small reservoir, neither it nor the state of California has allocated money to build a larger delivery system.
“All that development and governmental support that they provide every state, that should be the same thing they provide to tribes.”
Even as a backup option, the tribe is unable to lease its water to other users, such as rapidly growing cities, or earn money by leaving it in the river to preserve the waterway. Antiquated laws and court rulings typically allow tribes to be paid to conserve only water they previously used. Any changes to how a tribe could market its water would take an act of Congress.
“This is a long-standing problem,” said Mark Squillace, a professor at the University of Colorado’s law school. “From the perspective of the people using that water, why would they pay when they’re already getting it for free?”
The Law of the River at work
A half-century ago, the Bureau of Reclamation began construction on a massive canal called the Central Arizona Project to send the waters that flooded the Chemehuevi’s land 336 miles across the desert to Phoenix and Tucson. The pumps that power the system, which help deliver the state’s share of the Colorado River, are the largest single consumer of electricity in the state.
Meanwhile, the Chemehuevi rely on a single diesel pump to draw water six stories up to the plateau where they live above Lake Havasu.
For at least 50 years, the river’s decision-makers have recognized this disparity in water access. In 1973, a body called the National Water Commission submitted a report to Congress: “In the water-short West, billions of dollars have been invested, much of it by the Federal Government, in water resource projects benefiting non-Indians but using water in which the Indians have a priority of right if they choose to develop water projects of their own in the future.”
For tribes, the first challenge is securing their water rights. After the Supreme Court’s 1908 decision confirming tribes’ right to water, two paths emerged to quantify and settle the amount and details of those rights. Tribes could, with the backing of the Department of the Interior, negotiate with the state where their reservation is located. Or they could go to court. Fourteen basin tribes are still in the midst of this process, but either path they choose presents trade-offs.
Tribes that negotiate typically need to trade some of the water they believe they’re owed in exchange for money to build water-delivery infrastructure. They can also trade their water priority — leaving them more susceptible when allocations are cut, a reality that’s already threatening to curtail their water amid the West’s ongoing drought.
For tribes that choose to go through the courts to get their water, there’s no opportunity to negotiate for funding for canals, pipes and pumps, meaning there’s no way to move the water they’re awarded onto a reservation.
“It’s not enough to have the right to the water,” Squillace said. “You also have to have the infrastructure.”
“It’s not enough to have the right to the water. You also have to have the infrastructure.”
Highlighting the difficulties in converting rights to water on paper into actual water on a reservation, tribes around the West that secured a negotiated settlement only increased their agricultural land use by about 9% and saw no increase in residential or industrial development, according to estimates from a recent study published in the Journal of the Association of Environmental and Resource Economists.
And if a tribe can’t move water, it often can’t monetize it.
Laws passed between 1790 and 1834, known as the Indian Non-Intercourse Acts, have the effect of prohibiting tribes from leasing water beyond the borders of their reservations without congressional approval. Settlements also typically bar them from permanently selling their water and often prohibit them from leasing it.
“This is what’s left”
Politicians packed a conference room at the Arizona Capitol in April, where they unveiled an agreement to pay the Gila River Indian Community millions of dollars to leave its water in Lake Mead. Officials took turns at the lectern extolling tribes for their role in preserving the Colorado River.
“We don’t have any more important partners in this effort than in Indian Country,” Deputy Secretary of the Interior Tommy Beaudreau said.
When the Gila River Indian Community negotiated its water rights, the Central Arizona Project had begun carrying Colorado River water near its reservation south of Phoenix, and the tribe had some political clout after spending millions of dollars on lobbying. Those advantages allowed the tribe to negotiate tens of millions of dollars for infrastructure to deliver its water and the right to lease tens of thousands of acre-feet to nearby cities and a mining company. Its settlement has now made the tribe a well-compensated partner in conservation efforts.
“These are truly historic investments in directly tackling the challenge presented to our state and our region by the historic drought,” Gila River Indian Community Gov. Stephen Roe Lewis said during the April news conference announcing the deal to trade more water for money. The tribe declined requests for additional comment, as it is negotiating further water deals.
The Chemehuevi, by contrast, can’t access or lease most of their water. Their rights were quantified and settled via the courts in the 1960s, at a time when the tribe didn’t have federal recognition. So it didn’t receive infrastructure funding.
Escobar, the Chemehuevi’s tribal administrator, would prefer to use his tribe’s water, not lease it. He wants to expand pumping capacity and construct a cascading series of reservoirs. Once the Chemehuevi access the water, they could use it for more houses to bring enrolled members back to their land, new businesses to provide jobs and increased farming to grow the reservation’s economy.
Escobar talked about his dreams and the difficulty in developing Indian Country as he drove past the frames of unused greenhouses, evidence of a failed venture. Near a field where the tribe’s single tractor was working the soil, Escobar described the Chemehuevi’s agricultural plans. Behind him, Lake Havasu covered soil that could have been productive fields or pastureland. In front of him stretched sandy desert where the federal government said the tribe should harvest crops.
“We want to be a benefit to the system, but right now, they’re making it hard.”
“This is what’s left,” he said of the tribe’s potential farmland that wasn’t submerged by the reservoir. “It’s sad.”
After the once-nomadic Chemehuevi fought for recognition of their tribe and their reservation, they partnered with the University of Southern California to develop a plan to farm 1,900 acres using the 11,340 acre-feet of water per year, about 3.7 billion gallons, that the government allotted them — at least on paper. But, in a good year, the Chemehuevi farm only 80 acres, growing melons for food, devil’s claw for basket weaving and cottonwoods for a riparian restoration project.
If it can’t transport more water to expand the farm, Escobar said, the tribe could accept leaving water in the river in exchange for compensation. “We want to be a benefit to the system,” he said, “but right now, they’re making it hard.” Many non-Indigenous people and a few tribes around the basin earn money limiting their water use, whether by fallowing farm fields or ripping out lawns.
Why shouldn’t all tribes be paid? Escobar asked.
Anna V. Smith is an associate editor of High Country News. She writes and edits stories on tribal sovereignty and environmental
justice for the Indigenous Affairs desk from Colorado. @annavtoriasmith
Mark Olalde is an environment reporter with ProPublica, where he investigates issues concerning oil, mining, water and other topics around the Southwest.
Umar Farooq is an Ancil Payne Fellow with ProPublica, where he reports on national issues. @UmarFarooq_
Will Michigan’s Largest Water Provider Target Tiny City For Next Shutoffs?
Sonoita Water Customers Face Rate Shock, Water Shortages
Over the last year, customers of the Sonoita Valley Water Company have been dealing with water shortages, low water pressure and leaking lines. Now they’re facing a doubling of their rates, too.
The post Sonoita Water Customers Face Rate Shock, Water Shortages appeared first on Patagonia Regional Times.
With billions on the table for water infrastructure, small communities risk being left out to dry
Seth Petersen was at his grandmother’s funeral, and his phone wouldn’t stop ringing.
Three hours away in the village of Luck, Wisconsin, where he served as director of public works, there was an emergency. Petersen was getting calls repeatedly, asking for his expertise.
Petersen and two other employees were responsible for drinking water, wastewater, street maintenance, park and cemetery maintenance and picking up stray dogs, he said. The job never stopped.
“Seth, what the (expletive) are you doing?” his brother-in-law said to him as he came back to the family gathering from another call. “Why are you living like this?”
Petersen left that job at the end of last year. Now, he helps train water operators in small communities for the Wisconsin Rural Water Association.
Luck is not an outlier. In small and rural communities across the U.S., water system operators are stretched thin, covering around-the-clock responsibilities to keep water running safely and reliably despite aging and underfunded infrastructure.
The consequences of a water system falling behind have received the national spotlight, infamously in Flint, Michigan, and most recently in Jackson, Mississippi, where majority-Black communities bore the brunt of mismanagement and aging infrastructure.
Thousands of under-resourced systems risk a similar fate, and small water systems — defined by the EPA as serving fewer than 10,000 people, and making up more than 90% of the nation’s community water systems — are in a particularly precarious position.
Their staffing is often sparse and underpaid. Infrastructure, in many places, is crumbling and underfunded, and though there is a fresh infusion of federal money on the table, it’s a challenge to access.
The American Rescue Plan Act, Bipartisan Infrastructure Law and other programs represent a historic investment in the country’s water infrastructure, totaling billions of dollars.
But the total available funding, even after it’s all been doled out, still won’t be enough. One report from 2020 estimated that the U.S. would need to invest nearly $3.3 trillion in water and wastewater infrastructure projects between 2019 and 2039 to keep systems updated.
Many communities will also face increases in their water bills to keep up with infrastructure and staffing needs. Yet raising the price of water may prove unworkable in rural and historically-underinvested communities like Appalachia and the Mississippi Delta, some of the most impoverished in the country.
No one in the U.S. should have to worry about having safe drinking water, said Chris Groh, executive director of the Wisconsin Rural Water Association.
“But a town doesn’t take care of itself.”
Over the last two decades, water systems in the ten states bordering the Mississippi River violated U.S. Environmental Protection Agency regulations for drinking water more than 438,000 times.
That figure includes thousands of instances of heightened levels of harmful chemicals in water each year. Nitrates, trihalomethanes and haloacetic acids, which have all been linked to various cancers and other health hazards, were top contaminants in the EPA’s violation data in 2022.
Nitrates are an indicator of agricultural runoff, common in rural areas. And trihalomethanes and haloacetic acids appear as byproducts of the water treatment process, when chlorine reacts with organic contents.
Addressing these issues can require expensive treatment technology. But in the last two decades, small and large utilities alike have reined in the number of violations.
However, an Ag and Water Desk analysis of EPA Safe Drinking Water Act violation data nationwide found small water systems have been slower to reduce their violations than larger systems. And these violations only represented those reported; there could be many more incidences of unreported issues.
In the ten states along the Mississippi River, both small and large water systems saw increases in violations newly reported during 2022. For small water systems, that increase was more significant.
That disparity is, at least in part, an indicator of the disadvantages facing small and rural water systems, according to Jennifer Sloan Ziegler, a Mississippi-based engineer serving as vice president of the American Society of Civil Engineers’ Environmental and Water Resources Institute.
And recent injections of federal infrastructure funding won’t be enough, she said. They’re not sustained funding, she added, and “the sad thing about it is: It still doesn’t catch us up.”
The working conditions that drove Petersen to leave his position in Luck are a trend reflected in small communities across the country.
“I don’t have a day off,” said Nathan Taylor, lead operator of a small water plant in Wax, Kentucky. The days he’s not on-duty, his phone is constantly ringing as issues come up at the plant, he said.
Ziegler pointed out a water operator she knows nearby in the Mississippi Delta, whose responsibilities span four different water districts — “a huge, huge area,” she said.
Water system operators serve as a first line of defense for a community’s public health, and must have working knowledge of chemistry for licensing tests.
Yet operator pay in many small communities is about neck-and-neck with wages at the local McDonald’s. Other trades, like construction, often pay far more.
“You can go swing a hammer for 25 bucks an hour,” said Petersen, in Wisconsin, “...and you can ice fish all winter.”
A workforce survey last year in Kentucky found water utilities in the state pay as low as $10 per hour for an entry level position, with an average closer to $18. But 72% of managers reported losing staff to better pay in another job opportunity or other, often larger utilities.
The water workforce nationally is also aging overwhelmingly. Seventeen million workers are expected to leave the industry in the next decade, Ziegler said, and bringing young people into the profession has proven challenging.
“We’re losing people,” she said, and “we’re not getting them back.”
Widespread water workforce shortages make accessing infrastructure funding an even bigger task for small water systems’ overworked staff, despite desperate needs.
And the application process for federal funds often looks very similar in a village of 1,000 or a city of half a million, according to Ziegler.
“It is extremely extensive,” she said. “Not just the application, but the amount of background documentation that you have to provide them. It takes… I would say, months, to get it together.”
Smaller systems are at an inherent disadvantage. Larger utilities, with more ratepayers and bigger budgets, often have experts on staff to go after competitive funding pots.
“Their applications are shiny,” Petersen said. “And they’re written by someone with a Master’s degree.”
During his tenure as director of public works, Petersen worked through the application process to access federal infrastructure funding for Luck’s streets. Even with help from a consultant and phone calls with the state, he described it as overwhelming.
“You don’t even know where to begin,” he said. “Things are this far behind.”
Luck didn’t get that money. And in cash-strapped communities, paying large sums for the help of consultants in applying for funding that isn’t guaranteed is a big gamble.
“Let's just be honest. If they can't afford to upgrade and maintain and operate their systems with the money they have,” Ziegler said, “do you think they have money left over to hire somebody, to pay somebody to put together this application…? They don't.”
Without sustained infrastructure funding, communities in turn face a rising water rate. In many rural areas, it’s a bill they can’t afford.
In Martin County, Kentucky, where communities are built along snaking creeks and between the rolling mountains of Appalachia, residents still don’t trust the tap.
Decades of water district mismanagement, including chronic reports of discolored water and burdensome service shutoffs, eventually culminated in a state takeover. In 2020, authorities shifted control to Alliance Water Resources, a private firm, hoping to get the county’s water provisions on the right track.
At the peak of the crisis, the system’s aging water lines were leaking up to 90% of the water they were carrying, according to the estimates of Craig Miller, who now oversees the county’s water operations as division manager for the firm. For Martin County, that meant tens of millions of gallons of water going to waste every month.
In the years since the change in management, Martin County’s water system has made progress. In a recent stakeholder workgroup meeting, Miller reported improvements in water loss, as well as new hires and licensing for staff.
“There’s a good story here,” Miller said in the meeting. “But it is not over.”
Improvements came with a 24% rate increase, effective last year, piling onto already steep prices. More than a fifth of Martin County lives below the poverty line, according to recent census data.
“That's a huge burden on our poorest people,” said Nina McCoy, an advocate with Martin County Concerned Citizens, in the workgroup meeting. She pointed out that local water rates are far higher than in wealthier Louisville, where median income is 50% higher than that of Martin County.
The region’s mountainous terrain piles onto water infrastructure challenges, said Lindell Ormsbee, a professor of civil engineering at the University of Kentucky who’s paid close attention to the state’s water system struggles. And as in many rural areas, there are miles of water lines for relatively few homes, compared to cities like Louisville.
In Eastern Kentucky, many counties have historically relied on taxing the coal industry to fund water and other infrastructure needs. As the coal industry has declined, that funding has dried up, Ormsbee said, turning the burden over to ratepayers.
Even if systems are able to access one-time federal infrastructure funding, once it’s spent, they’ll return back to current levels of funding. In small communities, Ziegler said, that just won’t be enough.
“They're serving less affluent areas. They're serving older populations on fixed incomes,” Ziegler said, citing high rates of poverty in the rural and disadvantaged communities of her state of Mississippi. “Their customers cannot afford to pay more.”
This story is a product of the Mississippi River Basin Ag & Water Desk, an editorially independent reporting network based at the University of Missouri School of Journalism in partnership with Report For America and funded by the Walton Family Foundation.
The post With billions on the table for water infrastructure, small communities risk being left out to dry appeared first on Investigate Midwest.
How Arizona stands between tribes and their water
This story is the first in a series about the Colorado River. See the rest, as well as other great reporting from High Country News by signing up for our newsletter.
The Navajo Nation has for years been locked in contentious negotiations with the state of Arizona over water. With the tribe’s claims not yet settled, the water sources it can access are limited.
The hospital tried tapping an aquifer, but the water was too salty to use. If it could reach an agreement with the state, the tribe would have other options, perhaps even the nearby Little Colorado River. But instead, the Dilkon Medical Center’s grand opening has been postponed, and its doors remain closed.
For the people of the Navajo Nation, the fight for water rights has real implications. Pipelines, wells and water tanks for communities, farms and businesses are delayed or never built.
ProPublica and High Country News reviewed every water-rights settlement in the Colorado River Basin and interviewed presidents, water managers, attorneys and other officials from 20 of the 30 federally recognized basin tribes. This analysis found that Arizona, in negotiating those water settlements, is unique for the lengths it goes to in order to extract concessions that could delay tribes’ access to more reliable sources of water and limit their economic development. The federal government has rebuked Arizona’s approach, and the architects of the state’s process acknowledge it takes too long.
The Navajo Nation has negotiated with all three states where it has land — Arizona, New Mexico and Utah — and completed water settlements with two of them. “We’re partners in those states, New Mexico and Utah,” said Jason John, the director of the Navajo Nation Department of Water Resources. “But when it comes to Arizona, it seems like we have different agendas.”
The U.S. Supreme Court ruled in 1908 that tribes with reservations have a right to water, and most should have priority in times of shortage. But to quantify the amount and actually get that water, they must either go to court or negotiate with the state where their lands are located, the federal government and competing water users. If a tribe successfully completes the process, it stands to unlock large quantities of water and millions of dollars for pipelines, canals and other infrastructure to move that water.
“We’re partners in those states, New Mexico and Utah. But when it comes to Arizona, it seems like we have different agendas.”
But in the drought-stricken Colorado River Basin — which includes seven states, two countries and 30 federally recognized tribes between Wyoming and Mexico — whatever river water a tribe wins through this process comes from the state’s allocation. As a result, states use these negotiations to defend their share of a scarce resource. “The state perceives any strengthening of tribal sovereignty within the state boundaries as a threat to their own jurisdiction and governing authority,” said Torivio Fodder, manager of the University of Arizona’s Indigenous Governance Program and a citizen of Taos Pueblo.
While the process can be contentious anywhere, the large number of tribes in Arizona amplifies tensions: There are 22 federally recognized tribes in the state, and 10 of them have some yet-unsettled claims to water.
Federally recognized tribal reservations and trust land in Arizona
The state — through its water department, courts and elected officials — has repeatedly used the negotiation process to try to force tribes to accept concessions unrelated to water, including a recent attempt to make the state’s approval or renewal of casino licenses contingent on water deals. In these negotiations, which often happen in secret, tribes also must agree to a state policy that precludes them from easily expanding their reservations. And hanging over the talks, should they fail, is an even worse option: navigating the state’s court system, where tribes have been mired in some of the longest-running cases in the country.
Arizona creates “additional hurdles” to settling tribes’ water claims that don’t exist in other states, said Anne Castle, the former assistant secretary for water and science at the U.S. Department of the Interior. “The tribes haven’t been able to get to settlement in some cases because Arizona would impose conditions that they find completely unacceptable,” she said.
Neither Gov. Doug Ducey, a Republican who left office in January after two terms, nor his successor, Democratic Gov. Katie Hobbs, responded to requests for comment on the state’s approach to water-rights negotiations. The Arizona Department of Water Resources, which represents the state in tribal water issues, declined to answer a detailed list of questions.
Shirley Wesaw, a citizen of the Navajo Nation, lives near the not-yet-open Dilkon Medical Center. She eagerly watched as it was built, anticipating a time, after it was completed in June 2022, when her elderly parents would no longer have to spend hours in the car to see their doctors off the reservation. But Wesaw is familiar with the difficulty accessing water in the area. Shared wells are becoming less reliable, she said. It’s most difficult during the summer, when some of her relatives have to wake up as early as 2 a.m. to ensure there’s still water to draw from a community well.
“When it’s low, there’s a long line there,” Wesaw said, “and sometimes it runs out before you get your turn to fill up your barrels.”
One impact of Arizona’s negotiating strategy was particularly evident at the outset of the pandemic.
In May 2020, as the Navajo Nation faced the highest COVID-19 infection rate in the country, the tribe’s leaders suspected that their limited clean water supply was contributing to the virus’ spread on the reservation. They sent a plea for help to Ducey, the governor at the time.
More than a decade earlier, as the tribe was negotiating its water rights with New Mexico, Arizona officials inserted into federal legislation language blocking the tribe from bringing its New Mexico water into Arizona until it also reaches a settlement with Arizona. John, with the tribe’s water department, said the state “politically maneuvered” to force the tribe to accept its demands.
A multibillion-dollar pipeline that the federal government is building will connect the Navajo Nation’s capital of Window Rock, Arizona, to water from the San Juan River in New Mexico. But without a settlement in Arizona, the pipe can’t legally carry the water. The restriction left the tribe waiting for new sources of water, which, during the pandemic, made it hard for people to wash their hands in communities where homes lack indoor plumbing.
“For the State of Arizona to limit the access of its citizens to drinking water is unconscionable, especially in the face of the coronavirus pandemic,” then-Navajo President Jonathan Nez and Vice President Myron Lizer wrote to the governor. Nez and Lizer included with their letter a proposed amendment that would change a single sentence in the law. They asked Ducey to help persuade Congress to pass that amendment, allowing enough water for tens of thousands of Diné residents to flow onto the reservation.
Arizona rejected the request, according to multiple former Navajo Nation officials.
The Department of Water Resources did not provide ProPublica and High Country News with public records related to the state’s denial of the Navajo Nation’s request for help getting its water to Window Rock. Hobbs’ office said it could not find the communications relating to the incident.
Land and water
Nearly half of the tribes in Arizona are deadlocked with the state over water rights.
The Pascua Yaqui Tribe has 22,000 enrolled members, but limited land and housing allow only a third to live on its 3.5-square-mile reservation on the outskirts of Tucson. A subdivision still under construction has just started to welcome some Pascua Yaqui families on to the reservation. But the new development isn’t nearly large enough to house the more than 1,000 members on a waiting list. More than 18,000 additional acres of land would be needed to accommodate the tribe’s future population, according to a 2021 study that the tribe commissioned.
But Arizona has used water negotiations with tribes to curtail the expansion of reservations in a way no other state has.
It’s state policy that, as a condition of reaching a water settlement, tribes agree to not pursue the main method of expanding their reservations. That process, called taking land into trust, is administered by the Bureau of Indian Affairs and results in the United States taking ownership of the land for the benefit of tribes. Alternatively, tribes can get approval from Congress to take land into trust, but that process can be more fraught, requiring expensive lobbying and travel to Washington, D.C.
The policy will force the Pascua Yaqui “to choose between houses for our families and water certainty for our Tribe and our neighbors,” then-Chairman Robert Valencia wrote to the Department of Water Resources in 2020. “While we understand that our Tribe must make real compromises as part of settlement, this sort of toll for settlement that is unrelated to water is unreasonable and harmful.”
For tribes across Arizona and the region, building homes and expanding economic opportunities to allow their members to move to reservations is a top priority.
The Pueblo of Zuni was the first tribe to agree to Arizona’s land requirement when it settled its water rights with the state in 2003. The Zuni had hoped to take into trust more land they own near their most sacred sites in eastern Arizona, but that will now require an act of Congress. Since the Zuni settlement, all four tribes that have settled water rights claims with Arizona have been required to agree to the same limit on expansion, according to ProPublica and High Country News’ review of every completed settlement in the state.
In a 2020 letter, the Navajo Nation’s then-attorney general called the state’s opposition to expansion “an invasion of the Nation’s sovereign authority over its lands and so abhorrent as to render the settlement untenable.”
The Interior Department, which negotiates alongside tribes, has agreed, objecting on multiple occasions in statements to Congress to Arizona’s use of water negotiations to limit the expansion of reservations. In 2022, as the Hualapai Indian Tribe settled its rights, the department called the state’s policy “contrary to this Administration’s strong support for returning ancestral lands to Tribes.”
Tribes in Arizona often wait decades to secure water rights
Seven federally recognized tribes in Arizona have filed but not settled any of their claims to water rights. The settlement process can take decades and wind through courts and Congress.
Tom Buschatzke, director of the state’s Department of Water Resources, explained the reasoning behind Arizona’s stance to state lawmakers, noting it’s based on Arizona’s interpretation of a century-old federal law that Congress is the only legal avenue for tribes to take land into trust. “The idea of having that tribe go back to Congress is so that there’s transparency in a hearing in front of Congress so the folks in Arizona who might have concerns can get up and express those concerns and then Congress can act accordingly,” he told the Legislature, adding that the Bureau of Indian Affairs’ process, meanwhile, puts the decision in “the hands of a bureaucrat in Washington, D.C.”
The Department of Water Resources has even gone outside water-rights negotiations to challenge reservation expansion without an act of Congress. When the Yavapai-Apache Nation filed a trust land application with the Bureau of Indian Affairs in 2001, the department fought it, according to documents obtained via a public records request. The department went on to argue in an appeal that the trust land transfer would infringe on other parties’ water rights. A federal appellate board eventually ruled in favor of the tribe, but the state’s opposition contributed to a five-year delay in completing the land transition.
Pascua Yaqui Chairman Peter Yucupicio has watched non-Indigenous communities grow as he works to secure land and water for his tribe. “They put the tribes through the wringer,” he said.
No one has defined the terms of water negotiations between Arizona and tribes more than former U.S. Sen. Jon Kyl, R-Ariz.
Before entering politics, he was a longtime attorney for the Salt River Project, a water and electric utility serving parts of metro Phoenix. During that time, he lobbied for and consulted on state rules that force tribes to litigate water disputes in state court if they’re unable to reach a settlement. After landing in the Senate, Kyl and his office oversaw meetings where parties hashed out disputes, and he saw his role as that of a mediator. He helped negotiate or pass legislation for the water rights of at least seven tribes.
“I wasn’t taking a side,” Kyl told ProPublica and High Country News, “but I was interested in seeing if they could all reach agreements.”
Tribes, though, often didn’t see him as a neutral party, pointing especially to his handling of negotiations for the Navajo Nation and the Hopi Tribe. He was shepherding a proposed settlement for the tribes through Congress in 2010 when he withdrew support, saying the price of the infrastructure called for in the proposal was too high to get the needed votes. A 2012 version of the tribes’ settlement also died after he added an extension to allow a controversial coal mine to continue operating.
Even when Kyl wasn’t directly involved, tribes were pushed to accept concessions, including limits on how they used their water. Settlements across the basin, including in Arizona, typically contain limits on how much water tribes can market, leaving unused water flowing downstream to the next person in line to use for free.
Even when Kyl wasn’t directly involved, tribes were pushed to accept concessions, including limits on how they used their water.
And several tribes in Arizona were asked to give up the ability to raise legal objections if other users’ groundwater pumping depleted water underneath their reservation.
Tribes have also often had to trade the priority of their water — the order in which supply is cut in times of shortage, such as the current megadrought — to access water. The Bureau of Reclamation recently proposed drastic cuts to Colorado River usage, and, in one scenario based on priority, a quarter of the proposed cuts to allocations would come from tribes in Arizona.
“Some of the Native American folks had a hard time with the concept that they had to give up rights in order to get rights,” Kyl said, adding that tribes risked getting nothing if they kept holding out. “If you’re going to resolve a dispute, sometimes you have to compromise.”
Given the long list of terms Arizona typically pursues, some tribes have been hesitant to settle — which can leave them with an uncertain water supply — so the state has tried to push them.
In 2020, Arizona legislators targeted the casino industry — the economic lifeblood of many tribes. Seven Republicans, including the speaker of the House and Senate president, introduced a bill to bar tribes from obtaining or renewing gaming licenses if they had unresolved water-rights litigation with the state. The bill failed, but Rusty Bowers, the House speaker at the time, said the legislation was intended to put the state on a level playing field with tribes. “Where is our leverage on anything?” Bowers said. If tribes weren’t using the water, then others would do so amid a drought in the growing state, he said.
The state’s economic and population growth has presented tribes with other challenges: They must now negotiate not only with the state and federal governments but also with the businesses, cities and utilities that have, in the interim, made competing claims to water.
It has taken an average of about 18 years for Arizona tribes to reach even a partial water-rights settlement, according to a ProPublica and High Country News analysis of data collected by Leslie Sanchez, a postdoctoral fellow at the U.S. Forest Service’s Rocky Mountain Research Station, who researches the economics of tribal water settlements. The Arizona tribes that filed a claim but are still in the process of settling it have been waiting an average of 34 years.
Chairman Calvin Johnson of the Tonto Apache Tribe — which has a small reservation next to the Arizona mountain town of Payson — remembers, as a child, watching his uncle, then the chairman, begin the fight in 1985 to get a water-rights settlement.
Still without a settlement, the tribe hopes to one day plant orchards for a farming business, build more housing to support its growing population and reduce its reliance on Payson for water, Johnson said. But, faced with Arizona’s demands, the tribe has not yet accepted a deal.
“The feeling that a lot of the older tribal members have is that it’s not ever going to happen, that we probably won’t see it in our lifetime,” Johnson said.
Turning to the courts
Tribes that hope to avoid Arizona’s aggressive tactics can instead go to court — an even riskier gamble that drags on and takes the decision-making out of the hands of the negotiating parties.
The Kaibab Band of Paiute Indians is the only federally recognized tribe in Arizona yet to file a claim for its water. It has a reservation near the North Rim of the Grand Canyon, but with only 400 members and minimal resources, it would face a daunting path forward. To settle its rights, the tribe would have to engage in court proceedings to divvy up Kanab Creek, the only waterway that crosses its reservation; bring anyone with a potential competing claim to the creek’s water; find money to complete scientific studies estimating historical flows; and then, because the waterway spans multiple states, possibly face interstate litigation before the U.S. Supreme Court.
“It’s about creating and sustaining that permanent homeland,” said Alice Walker, an attorney for the band, but the path between the tribe and that water “boils down to all of those complex, expensive steps.”
Arguing before the Supreme Court on behalf of Arizona and other parties in 1983, Kyl successfully defended a challenge to a law called the McCarran Amendment that allowed state courts to take over jurisdiction of tribal water-rights claims.
“It’s about creating and sustaining that permanent homeland.”
“Tribes are subject to the vagaries of different state politics, different state processes,” explained Dylan Hedden-Nicely, director of the Native American Law Program at the University of Idaho and a citizen of the Cherokee Nation. “As a result, two tribes with identical language in their treaties might end up having, ultimately, very different water rights on their reservations.”
Some states, such as Colorado, set up special water courts or commissions to more efficiently settle water rights. Arizona did not. Instead, its court system has created gridlock. Hydrological studies needed from the Department of Water Resources take years to complete, and state laws add confusion over how to distinguish between surface and groundwater.
Two cases in Arizona state court that involve various tribes — one to divide the Gila River and another for the Little Colorado River — have dragged on for decades. The parties, which include every person, tribe or company that has a claim to water from the rivers, number in the tens of thousands. Just one judge, who also handles other litigation, oversees both cases.
Even Kyl now acknowledges the system’s flaws. “Everybody is in favor of speeding up the process,” he said.
After years of negotiations that failed to produce a settlement, the Navajo Nation went to court in 2003 to force a deal. Eventually, the case reached the Supreme Court, which heard it this March. Tribes and legal experts are concerned the court could use the case to target its 1908 precedent that guaranteed tribes’ right to water, a ruling that would risk the future of any tribes with unsettled water claims.
The Navajo Nation, according to newly inaugurated President Buu Nygren, has huge untapped economic potential. “We’re getting to that point in time where we can actually start fulfilling a lot of those dreams and hopes,” he said. “What it’s going to require is water.”
Just across the Arizona-New Mexico border, not far from Nygren’s office in Window Rock, construction crews have been installing the 17 miles of pipeline that could one day deliver large volumes of the tribe’s water to its communities and unlock that potential. Because of Arizona’s changes to the federal law, that day won’t come until the state and the Navajo Nation reach a water settlement.
For now, the pipeline will remain empty.
Anna V. Smith is an associate editor of High Country News. She writes and edits stories on tribal sovereignty and environmental
justice for the Indigenous Affairs desk from Colorado. @annavtoriasmith
Mark Olalde is an environment reporter with ProPublica, where he investigates issues concerning oil, mining, water and other topics around the Southwest.
Umar Farooq is an Ancil Payne Fellow with ProPublica, where he reports on national issues. @UmarFarooq_